The presumption under Section 139 of the NI Act that a cheque is issued in discharge of a legally enforceable debt can be rebutted by the accused by adducing credible evidence to prove that the cheque was issued for some other purpose.

JUDGMENT :

BIBHAS RANJAN DE, J.

1. The judgment and order dated 18.09.2018 passed by Ld. Additional Sessions Judge, Bench II, City Sessions Court, Calcutta in Criminal Revision no. 306 of 2017 arose out of judgment and order dated 01.09.2017 passed by Ld. Metropolitan Magistrate 17th Court, Calcutta in complaint case no. C-439 of 2013, is challenged by this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC).

2. Complaint case no. C-439 of 2013 was initiated on a complaint under Section 138 of the Negotiable Instrument Act,1881 (hereinafter referred to as N.I Act) alleging inter alia that the complainant company and the accused, namely Pramod Kumar Gupta, had business relation for a long time and in discharge of existing liability accused issued two account payee cheques bearing no 902036 & 902037 dated 17.04.2013 to the tune of Rs. 1,50,000/- and 1,29,972/- respectively in favour of the complainant company, drawn on I.C.I.C.I Bank, Burrabazar Branch. Both the cheques were presented within the valid period to its drawee bank, but those cheques were dishonored on 19.04.2013 on account of insufficient funds. The complainant company sent a demand notice dated 27.04.2013 and the accused, on receipt of that notice, sent a reply to that notice.

3. Ld. Metropolitan Magistrate, 17th Court, ordered conviction and directed the convict Pramod Kumar Gupta to pay compensation of Rs. 3,00,000/- in default to suffer simple imprisonment for two months. Ld. Metropolitan Magistrate observed that accused failed to produce any document in support of plea of issuing of blank cheques or request for return back the those cheques. Ld. Magistrate took it for granted that cheques were issued by the accused in discharge of legally enforceable debt with the help of Section 139 of the NI Act and came to his final order of conviction.

4. Assailing the judgment passed by the Ld. Magistrate accused preferred a revision application before the Ld. Sessions Judge, City Sessions Court, Calcutta and that revision application was taken up by the Additional Session Judge, Bench II, City Sessions Court, Calcutta.

5. Ld. Additional Sessions Judge observed as follows:

“Perused the evidence on record and impugned judgment. I find that two cheques are involved in this case which are termed as security cheque by the accused and as the cheque in discharge of legal liability by the complainant. Complainant by his evidence would be able to establish the circumstances for which those cheques were issued and that was admitted by the accused that there was business terms. From the demand notice I find that the accused denied the claim of the complainant on the ground as if the complainant supplied demand notice I find that the accused denied the claim of the complainant on the ground as if the complainant supplied damaged goods. But rightly it has been observed by Ld. Trial Judge that just after such incident no correspondence was made by the accused denying the claim of the complainant as to cost of delivered goods. So, such plea taken in reply of demand notice seems to me a preplanned activity to deny the claim of the complainant. It has also not been established by the accused when and regarding what transaction those two security cheques were issued. So, which was the duty of the accused to establish has not been brought. On the other hand, the complainant would be able to establish their terms of business and the plausible cause of issuane of those cheques. Otherwise, the statutory formalities are rightly followed by the complainant and thus I think there is no need to interfere the judgment of the Ld. Trial Court. Moreover, it is not out of place to observe that these order is appealable one and thus the revision does not stand.

Hence, it its,

Ordered

That judgment and order dated 01.09.2017 passed by Ld. M.M., 17th Court, Calcutta in connection with complaint Case No. C-439/2013 is affirmed.

The revisionist is directed to appeal